15 minute read
Empower women to achieve justice
4. Gen der-focused en gagemen t en try poin ts, modalities an d good pra cti ces for customary an d in formal j ustice systems
The relationship between women’s rights and CIJ is complex. CIJ systems are widely used by women, as they routinely deal with common justice concerns that women face, yet women are confronted with a range of challenges in obtaining justice through CIJ systems. These challenges must remain in focus when considering how to expand and strengthen women’s access to justice based on the growing range of models, lessons and approaches that can be utilized to identify opportunities for engagement, whether direct, indirect or strategic. 79
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It is important to recognize that CIJ systems encompass an “enormous range of practices, institutions and traditions”, highlighting “the dangers Empowering women to achieve justice through CIJ systems requires enhancing women’s knowledge of their rights and the law, addressing access challenges, facilitating women’s mobilization within CIJ systems and providing support to navigate the range of justice mechanisms available. Customary legal empowerment “requires paying attention to issues of representation and participation of marginalized community members in [customary justice systems]… and their ability to make use of these systems to uphold their rights and obtain outcomes that are fair and equitable”. 84 of deriving general conclusions from specific regional and historical contexts”. 80 The appropriateness and manner of engagement must thus be rooted in context and characteristics of a particular CIJ system, identifying optimal entry points that respond to justice needs while protecting and promoting human rights. 81
Importantly, all justice systems are reflective of the socio-political context in which they are situated. 82 Detailed below are a range of entry points and good practices for designing and implementing programs that engage with CIJ systems to promote justice for all. T he aim is to find ways to overcome dysfunctional dispute resolution and introduce reforms that are both
Strengthen women’s knowledge of the law and their rights
Knowledge about their rights and content of existing laws, both formal and customary, and the pathways to seek redress in instances of rights violations can assist women in making more informed choices about when to take legal action, and through which avenues. There are several ways in which this knowledge can provide assistance. accepted socially and locally and sustainable under international law. 83 At times, this may mean nonengagement, or engagement through supplementary or indirect routes.
Identified entry points are clustered around five main engagement areas: (i) empowering women to achieve justice; (ii) adopting and implementing normative frameworks that benefit women and protect their rights; (iii) pursuing gender-sensitive reform of CIJ systems; (iv) building and expanding alliances and partnerships that support women’s rights; and (v) strengthening research on women’s experiences with CIJ systems. These are complemented by specific engagement modalities to ensure women’s rights are
Empower women to achieve j ustice
central and indispensable. First, knowing the rights that women are entitled to under international human rights frameworks can help to build demand for improvements in women’s position and solidarity with other women. A lthough optimal, this need not always be framed in the language of human rights, where this may be sensitive or trigger resistance. It is important to speak to the shared challenges women face within a particular context to help build the collective consciousness of women in ways that support contestation of dominant power relations.
Image: ©IDLO: IDLO facilitated community discussions on women’s customary rights to land in Burundi in 2015
Second, women’s knowledge of formal laws can also be important in CIJ settings. In contexts where customary laws are subsidiary to a country’s formal laws, knowledge of the formal law can provide women with the legal tools to challenge local customary laws or norms where these contravene formal laws or international human rights.
Third, having good knowledge of local customary law, norms and practices is key to understanding how women’s disputes and grievances are likely to be resolved within CIJ systems and whether these contravene either formal laws or women’s human rights. Building concrete knowledge of customary laws can be difficult given that they are frequently unwritten and not fixed, but adapt to particular circumstances.
One approach that has been identified to give greater clarity and consistency to CIJ proceedings is to introduce codifications of customary law. However, codification can also carry challenges and risks, including for women. 85 For instance, it can fix customary law, making it more rigid and less open to adaptation over time as attitudes shift, or as women navigate the intricacies of the application of customary law in ways that enhance equality. 86 Any codification must therefore be approached cautiously, recognizing it may be unsuitable or not appropriate in all contexts.
A lternative ways of building knowledge and consistency of customary law can include facilitating regular dialogues with CIJ leaders or female elders on the content of customary law or recording and publicizing the decisions of CIJ proceedings, rather than the laws. These approaches can share knowledge about the content of customary law without fixing it in potentially unhelpful ways.
Entry points
I mportant considerations
E xamples and good practices Campaigns that raise awareness or provide training for women. Dial ogues between women and CIJ actors on the content of customary law. R ecording and publicizing decisions from CIJ proceedings in print or other forms to assist women in knowing the content and application of the law.
Choose a familiar forum: awareness-raising activities can be built into spaces that women already frequent in their daily lives. Where it may be difficult to target women specifically, broader outreach may be necessary to ensure that women access information. Consider the mes senger and the medium: a trusted community member, such as a woman leader from the same region or a popular local personality, may be most effective in informing women about their rights and the law. Similarly, consider whether print media, radio, television, billboards, mobile phone messages or other communication means are most likely to reach women and gain traction. As sess timeframes realistically: knowledge is not a product that can be delivered in a singular training. Learning is a process that needs to be strengthened over time through discussion and reflection. Plan f or broader engagement to achieve change: knowledge is rarely sufficient on its own to achieve change. While it is necessary for women to know and assert their rights, realizing women’s rights is constrained by other factors. Awareness raising is best paired with other engagement modalities to catalyze meaningful change.
In South Afric a, a legal empowerment program for women living with or affected by HIV sought to improve their knowledge and awareness of their rights and legal options (both formal and customary) regarding property and inheritance. It was assessed that where knowledge was improved, women more proactively pursued redress for violations of their rights when paired with greater access to legal aid. 87
In Myanmar, a media campaign overcame a difficult political environment for discussing rights. 88 The campaign was developed based on significant background research and invited people to talk about justice issues and solutions across both formal and CIJ systems. It utilized multiple platforms – community sensitization and role plays, a television drama, radio talk shows, billboards, social media, as well as a rock concert – and drew heavily on local celebrities to spread messages. Monitoring revealed the campaign reached 22 million people and that those exposed to the campaign were more likely to have higher levels of rights awareness than those who were not. 89
The voices of women, especially women living with multiple forms of discrimination, are often sidelined. S paces are needed to enable women to express their views and in turn for these views to influence broader discussions on access to justice. This may occur by bringing groups of women together to share experiences and develop advocacy messages and strategies. Alternatively, it may involve bringing women and CIJ leaders together to provide the opportunity for women to be heard.
In addition, connecting women so that they know about others who are seeking to challenge customary laws or discrimination can be important to
Image: ©IDLO: IDLO-supported Alternative Dispute Resolution Centers in Somalia hold local dialogues for women Center users and community representatives
build solidarity. This is particularly important in relation to CIJ systems because impacted women are more likely to be located in rural settings and disconnected from women’s networks that are often urban-centric. D ifferent platforms are therefore needed to amplify and connect all women’s voices.
Entry points
Important considerations
Examples and good practices Pr oviding safe spaces for women to express their views on CIJ, in closed or public venues, as appropriate. Consulting and inv olving diverse groups of women in developing and supporting engagement strategies, including through coalitions. De veloping or strengthening inclusive platforms that represent women’s diverse experiences. Building alliances that connect women across communities with others seeking to use the law (formal or customary) to assert their rights, seek protection or contest customary laws.
Recognize women’s varied sources of power: strategies for change should look at how women acquire or exercise power and ways to capitalize on these. 90
Consider inequalities between women: bringing women together can mask important differences such as intersectional discrimination. Consider how diverse women can best contribute their experiences in ways that give them voice without marginalization. As sess risk of backlash and harm: amplifying the voices of women can risk exposure to backlash and harm. It is important to talk with local women about the best ways to avoid or manage this.
In Peru, Andean and Amazonian indigenous women came together to establish a national organization (ONAMIAP) 91 working for the full exercise of their individual rights as women and for their collective rights as indigenous peoples. Based on principles of respect and recognition of diversity, ONAMIAP implements actions aimed at strengthening grassroots organizations, raising awareness of their demands and influencing the public agenda in order to gain representative spaces at local, regional, national and international levels. ONAMIAP has participated in different national consultation processes and made proposals on laws and health policy. At the global level, Musawah (meaning ‘equality’ in Arabic), a movement of Islamic women’s organizations advocating for equality and justice in the Muslim family, has endorsed a Framework for Action to encourage the re-interpretation of the Qur’an in response to the lived realities of Muslim women and their families. 92 The Framework for Action was developed in 2009 through a series of meetings with Islamic scholars, academics, activists and legal practitioners from 30 countries. 93 Musawah argues that aspects of current laws in Muslim societies are unjust, and breach both Islamic principles of justice and international human rights. The Framework for Action encourages Islamic interpretation to create space for change in Islamic laws and practices. 94
Local and community-based women’s organizations are often at the forefront of efforts to ensure the protection of women’s rights through CIJ systems. Facilit ating and building on the work of local women’s organizations can bring a number of advantages.
T heir knowledge of the local context enables programming that is more relevant to women and takes into account the realities of women’s lives. L ocal women’s organizations also have the benefit of local networks within a country – be they downwards to grassroots women’s groups, or upwards to political elites. These advantages mean that support channeled through women’s organizations is likely to be better
Image: ©IDLO_Lorelei Taylor French: A lawyer from the Ugandan Association of Women Lawyers (FIDA), walks with a woman who is representing herself in a sharia court to win back her property
tailored to context and attuned to political and cultural currents and opportunities. Moreover, research shows that there is a correlation between the presence of a strong, autonomous local women’s movement and the presence of legislation criminalizing GBVAW . 95 Supporting local women’s organizations can thus be catalytic in supporting broader changes beyond just facilitating the activities of a particular organization.
Entry points
Important considerations
Examples and good practices Providing support such as funding or training to local women’s organizations. Opening spaces for women’s organizations or groups to come together to share experiences, pool resources and brainstorm joint advocacy messages. Seeking the views of diverse local women’s organizations to ensure plans are not duplicative and benefit from the insights of existing women-led work in country.
Support local ownership: ensure any support to women’s organizations is demand-driven and meets their needs in locally appropriate ways. Acknowledge the diversity of women’s experiences: ensure that funds support women’s organizations that are representative of women’s diverse experiences and intersectional identities, so that elite views and privileges are not reinforced to the detriment of others. Consider the availability of core funding to strengthen organizational capacity: support for core funding rather than programs or activities can drive reduced donor dependence and financial fragility. Consider ways of contributing to core costs of women’s organizations, including through pooled donor resources. Assess the risk of undermining cooperation through funding modalities: with limited donor resources, unhelpful competition can be sparked between local women’s organizations, discouraging collaboration. Consider balancing distribution of resources across multiple women’s organizations.
In India, Women’s Courts (Nari Adalats/Mahila Panch) were created in several states through a government program to develop women’s collectives in villages. 96 These courts were also shaped by a long tradition of a local women’s movement addressing violence against women. The parent program, called Mahila Samakhya, is a national-level rural women’s empowerment program started by the Department of Education. The system of Nari Adalats/Mahila Panch emerged as informal courts intended to handle women’s issues, overwhelmingly domestic violence, divorce and other family conflicts. Self-identifying as “for women, by women, and of women”, these courts offer arbitration for cases of violence under the authority of a large group of trained women, who have established legitimacy in their community through decades of persistence. This example of a women-led customary justice process has been assessed as having the potential to “change broader cultures of gender and violence and perhaps even the legal culture itself”. 97
Image: ©IDLO_Lorelei Taylor French: An advocate at the Jinja Justice Centre in Uganda mediates a dispute between a married couple
When women experience a dispute or grievance, they may lack the appropriate social networks to navigate the available justice mechanisms and may need specific support and accompaniment to access justice. Support may be provided through paralegals, intermediaries, justice centers, women’s advisors or citizen’s advice services. Programming can facilitate such services, if they already exist in the country, or play a role in their creation.
It is important that paralegals and citizen’s advice services are connected to locally relevant women’s organizations to help them fulfill their roles. Regardless of their institutional form, these services act as resources for women, providing them with confidential information on justice options and what these entail, both pros and cons, and how to take forward a case. In some instances, paralegals or intermediaries may even go beyond providing assistance to navigate existing justice mechanisms and themselves offer mediation for minor disputes. The addition of paralegal or intermediary mediation can expand women’s justice options, but can also provoke backlash from CIJ leaders who may see such cases as their domain. 98
Entry points
I mportant considerations
Examples and good practices Supporting existing services such as paralegal, intermediary, citizen’s advice, women’s advice or justice center services to provide women with accurate information about their justice options. 99
Training or mentoring paralegals about women’s human rights, customary and formal laws, referral and appeal pathways, mediation skills and gendered experiences of justice. Facilit ating interaction between CIJ leaders and existing support services to build productive relationships. S upporting women’s leaders or organizations to provide or facilitate justice assistance in their communities.
Developing referral pathways to help women navigate not only legal aspects, but also access support and related services for ensuring justice, especially for GBVAW matters. S upporting programs that engage women as active participants in the justice process, rather than only as service recipients. Women should receive information about both CIJ and formal systems, so they may make informed choices and participate accordingly. T raining women on self-representation in CIJ systems or, if they are unable to self-represent, providing them with information on what good representation entails. De veloping graphic guides that depict women’s potential justice journeys.
Consider impact on the wider jus tice sector: efforts to create or strengthen specific justice actors must consider the impact on the broader justice system. Consultations with CIJ leaders and other justice actors are critical to foster complementary relationships. As sess risk of reproducing cultural biases and inequalities: new or strengthened legal aid services, paralegals or justice centers may exhibit the same biases and inequalities that characterize wider society. To expand justice for women, it is important to challenge inequalities and handle cases with gender sensitivity. Adopt an int ersectional gender lens: in supporting women paralegals or advisors, consider ways to ensure representativeness and avoid elite capture. Det ermine jurisdictional and procedural standards: in supporting advisory services it is necessary to establish clear protocols and procedural safeguards. Support accessibility: consider how to ensure services are accessible from multiple standpoints – physical location, hours of operation, staffing, affordability, as well as cultural and social acceptability. Plan for sustainability: continuity of service is an important consideration, particularly if services are to be free of charge.
In Balkh and Badakhshan provinces in Afghanistan, 22 Gender Focal Points were trained to support and advise women on their rights, formal and customary law, available support and appropriate referral pathways. Focal Points are locally respected women who receive basic legal training. This has been welcomed by the Ministry of Women’s Affairs as they are not able to provide support services countrywide. In addition, a legal information center was opened in the courtyard of the Blue Mosque in Mazar-e Sharif, Balkh Province. The center hands out leaflets to the community, providing information on rights and the law, including women’s property and inheritance rights. 100
In Afghanistan, the development of a paralegal manual and training program reportedly led to increased legal assistance and knowledge of women’s rights in rural areas. 101
In Port Moresby, Papua New Guinea, human rights defenders have been identified by the National Capital District GBV Secretariat and trained to be part of the referral pathway. Human rights defenders in Port Moresby work within local communities and alongside CIJ mechanisms such as village courts. 102
